By: Salwa Mansuri, Graduate Candidate, London School of Economics & Political Science, Resident Intern, Princeton Foundation for Peace & Learning
Introduction & Overview
Rape is no doubt the violation of an individual’s autonomy. Its aftereffects are, however, far more interpersonal, familial and far-reaching than evident in contemporary law. While there maybe provisions for survivors of rape themselves, at present, there are no provisions for families of survivors of rape especially in the Indian context. To this end, the rights of rape survivor families must be formally stipulated and legally codified. Though some of these rights are part of the Indian Constitution, it becomes necessary to reemphasize them more explicitly not only to integrate them formally within rape law and other associated provisions in the Indian Penal Code but also a means for survivor families to exercise their rights as they struggle for justice for their beloved rape victim.
The brutal gang-rape of Nirbhaya in 2012 sparked national outrage and was one of the watershed moments in the rape laws. The accused were caught and were hanged to death. Justice was finally delivered but it took 8 years. In the aftermath of the incident, Nirbhaya’s mother, Asha Devi fought the relentless struggle and confessed: “my voice falters as she struggles to stay calm”. The fact that the justice took so long to deliver, made her believe that “nothing has changed despite her constant struggle which proves to be demoralizing and demotivating at times.”
Her struggle were evident in her interviews where she explicitly mentioned “I struggled for almost eight years for justice to my daughter. I did not rest nor left the case until finally the convicts were hanged”. Through accounts of Asha Devi, and her struggle for justice, it is evident that its not only the rape victim but also their relatives and family members endure struggles throughout the arduous process, the rights for whom must also be stipulated and codified.
There is an urgent need to enhance the clarity around the provisions for families of survivors of rape. The rights of rape survivor families must be formally stipulated and legally codified. it is necessary to reemphasize the family’s rights which are part of the Indian Constitution and integrate them formally within rape law as a means for survivor families to exercise their rights as they struggle for justice for their beloved rape victim.
Impact of Rape on Families: Relevance of the Indian Context & the Family Systems Theory
Rape is a crime that impacts not only the victim-survivor but is also a crisis towards the entire family. Further, rape is a means of torture that has a serious impact on all levels of individual function and entire family. In cases where the news of the rape is known to the broader community, families experience shame, guilt and stigma that the community around them only reinforces. Considering the significant spillovers on families, this research article adopts a family systems theory which is suited particularly well for the family structure in the Indian context. A family systems theory is considers the family as a single, harmonious unit rather than the combination of individual segregated parts. In practice, this entails the interdependent interaction of family members, where each influence other’s’ behaviors. Choosing the country context of India to stipulate the rights of rape survivors’ families is strategic because of the tightly knit family structures that they are rooted in. Indian families follow a rather close-knit, interdependent and intergenerational family structure which are further shaped by, embody and entrench societal norms and stigmas. The Indian context therefore becomes particularly relevant to reimagine and stipulate the rights of survivors from both, a social & legal lens.
Right to Access Mental Healthcare
Rape Survivor Families do not merely experience the trauma and the mental health effects that come with the incident of rape but if rape has caused the loss of the victim-survivor, such a loss in the form of grief brings with itself, an additional feeling of misery. In an interview, Nirbhaya’s mother, Asha Devi explicitly claimed that she was “depressed and down” and that “every time a girl is raped in the Capital she feels that it is her daughter. “Every day a Nirbhaya is gang-raped and killed in the city”. Though not explicitly conveyed, her experiences signify one of Post-Traumatic Stress Disorder (PTSD) and retraumatization. In another interview Asha Devi recalls: “I have spoken about that night a thousand times since, but this is one moment I share sparingly, when I saw death in my daughter’s eyes”. “For the past two months, I have been going to the courts daily with my lawyers (two of whom have been with her from the start). “I take a bus and the metro to get to the court. By the time I get home, after listening to the vultures defend themselves, I am numb inside. People have taught me how to be a fighter.”
Dr Raman Deep, a psychiatrist with AIIMS in Delhi who has counselled rape victims and their families, says that survivors guilt’ is a common psychiatric condition families of rape victims undergo. “The person recounts what could have been, they blame themselves for having survived when the relative is no more, even blame themselves for what has happened,” she explains. Unlike grief, which, as noted psychiatrist Elisabeth Kubler-Ross described in 1969, is overcome in five phases (denial, anger, bargaining, depression and acceptance), rape trauma is overcome entirely differently, and often never on your own.
Right to Access Mental Healthcare has been explicitly outlined in Section 18 of the Indian Penal Code. These services become crucial in the context of Rape Trauma Syndrome. The aftereffects of rape are severe which have long-lasting effects. The application Rape Trauma Syndrome and more generally the after psychological impacts resulting from rape from the perspective of Family Systems Theory means that it is not just the survivor who suffers from mental health impacts but similar and more aggravated impacts are felt by the family of the survivor as well including but not limited to anxiety, depression & PTSD.
Right to Privacy
Privacy more generally, is a fundamental component of human agency because it enables individuals, or in this case, families to selectively disclose pieces of information. This right must not come under the inherent assumption that families may not wish to disclose any information at all, this holds particularly true if disclosure of such information will enable them to advocate more specifically towards attaining justice. The Right to Privacy must in fact extend towards determining who and under what circumstances is allowed to withdraw not just information about the case but also about her own family. Stipulating the Right to Privacy becomes a particularly crucial element especially because the families of survivors of rape are not only at the forefront of justice but at the same time also targets of the public eye.
Asha Devi Recalls that after she lost Nirbhaya, she experienced significant public scrutiny which manifested into an everyday part of Asha Devi’s life. Devi distinctly recounts “The first time she tucked a lapel mike into the pleats of her sari, the first time a camera flashed in her face, the first time someone asked her if she missed her daughter, she thought it would be her last” She recalls that “I had never been to court before, never even stepped out of her house alone”. But she changed says Raj Kumar Anuragi, a family member and journalist. The incident evidently takes a significant toll on the lives of rape survivor families and changes them in profound ways.
Brutal and invasive behavior by the public further adds to the challenge of survivors themselves being able to process the incident in the first place. In another interview, the Nirbhaya’s family stated that documentary and film directors have continually harassed Nirbhaya’s family. In particular, Supreme Court Advocate Priya Hingorani, served as the legal representative for Nirbhaya case and assisted the family starting the Nirbhaya Jyoti Trust. She stated that Nirbhaya’s family members were coerced to share sensitive details of bodily injury and experienced perpetual and interrogative questions relating to the incident.
It must be noted however, that the right to privacy of individual family members, is stark to the collective right to privacy of families of survivors. For instance, though the right to privacy was not explicitly recognized but in the aftermath Kharak Singh v. State of U.P the Supreme Court for the first time recognized the right to privacy which is implicit in the Constitution under Article 21. Rather the right to privacy that is bestowed on the families of survivors must extrapolate the rights that rape survivors themselves receive in addition to individual rights that they already possess as key elements of their human rights.
Right to Legal Aid
Nirbhaya’s father, Badrinath Singh “still works at the airport, but now makes entry passes for Rs 20,000 a month. When Nirbhaya died, he had confessed in a press interview that he feared he would not have money for his daughter’s cremation. “By then her father had become a baggage loader at the Indira Gandhi International Airport, and would work double shifts to earn Rs 6,000 a month. “They were a lower middle-class family, eking out an ordinary existence”
Even though “Chief Minister Akhilesh Yadav announced a compensation package of 20 lakhs to the family, firstly, the cost of the 10-year battle likely exceeded this amount and secondly, the government stated that this compensation was only granted given the heinous and grave nature of the Delhi Rape Case. Unless such compensation and pathways for legal aid become a right, it becomes challenging for other survivors to claim similar compensations and legal aids for families of survivors.
Article 39A of the Indian Constitution explicitly states that “State shall ensure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice. “The National Legal Services Authority (NALSA) provides free legal services to rape victims who cannot pay for their private legal defense”. “Rape victims also have access to specially trained women police officers, an independent judiciary, and protection from social stigmatization, all of which can provide invaluable support during and after the legal process”. However, within such provisions, no rights are legally formalized which extend to the families of survivors that continue to battle with legal entanglements and half-justices.
However, what happens in the case that we lose survivors to death during the case. This final section of stipulating rights for survivors is to stipulate the right to legal aid for survivors’ families who continue to fight for justice for the beloved survivors they lost in their battle for justice. At present the right to free legal aid is stipulated in several ways. Firstly, the right to free legal aid is focused on the accused. At present the only positive legal development that has been made as of 2023 is that legal aid is now extended to minors and juvenile survivors under the Nirbhaya Fund.
Conclusion, Limitations & Suggestions for Further Research
To conclude, rape impacts more than just the survivors. It deeply disturbs the family set up due to shame, stigma and guilt that it stereotypically brings. Several scholars thus far have been able to capture the dire impact it has on families; however, this research article is perhaps one of the first that seeks to stipulate the rights for the families of rape survivors. In short, it focuses on stipulating and reinstating three rights which is the Right to Access Mental Healthcare, The Right to Privacy & the Right to Legal Aid. Each of these rights are at present for survivors and victims. However, through the family systems theory, there is an attempt to extend these rights and protections to survivors’ families to ensure that the battles they fight for survivors’ family members are protected under constitutionally guaranteed rights.
The family systems theory does not come without its limitations. By considering the family as a single unit, it fails to account for the fact that immediate family members and survivors might choose to exercise these rights within family members as well such as the right to privacy. For instance, immediate family members might want to exercise the right to privacy from their own relatives which may deteriorate the family fabric. An additional limitation of the family systems theory is that even though certain rights such as the Right to Access Mental Healthcare may be stipulated on paper, given the family perpetrated stigma experienced about mental health and accessing mental health services, families of survivors maybe hesitant to access these services due to the duality of stigma, due to the incident of rape as well as the access of mental health services, more generally.
Thus far, the reason I stipulate only three types of legal rights for families of survivors is because of its close empirical alignment and relevance with Asha Devi’s experiences, chosen as a case study. However, future research must explore other rights of the family such as speed of trials, and the right to zero FIR (First Information Report). Such an approach will ensure that it is not only rape survivors that are protected themselves, but their families are as well, especially when they have lost their loved ones to rape yet continue to fight for justice of their loved ones and a beacon of hope for others.
